The Internationalization of Intellectual Property: New Challenges from the Very Old and the Very New
Gervais, Daniel J.
Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only domestic (or national) works or inventions would be counterproductive: it increases unfair competition from unprotected foreign works and inventions. This explains why intellectual property has been on the path of progressive internationalization since the early days of international trade, a phenomenon which has accelerated very significantly since the 1980s. The paper examines the four phases of this internationalization process. In the current phase, there are two important challenges that must be successfully tackled: the protection of traditional knowledge and the application of copyright to the Internet. During the Uruguay Round, several developing countries and transition economies (countries from Eastern and Central Europe in transition to a market economy) were learning the ropes of intellectual property law by and large a set of Western concepts. These countries are now coming to the table demanding appropriate protection of traditional knowledge. In parallel, the Internet's rapid growth and increasing use as a tool to disseminate copyrighted material may engender a fundamental shift in copyright usage. The paper examines these challenges and focuses on the possible approaches with a view to strengthening the intellectual property system.